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Attorneys for Wetterlings, media, clash in court: At issue: privacy vs. public information

Patty and Jerry Wetterling accept applause from a Friday, Jan. 27, 2017, Minnesota Newspaper Association audience. They recounted the final days before authorities solved the disappearance of their son, Jacob. (Don Davis / Forum News Service)

ALEXANDRIA, Minn. — A legal clash unfolded in a Douglas County courtroom Friday, Feb. 2, over whether the family of Jacob Wetterling has a right to privacy that should prevent some information in the criminal investigation from being released to the public.

In the courtroom, Jerry and Patty Wetterling, the parents of Jacob, the 11-year-old St. Joseph, Minn., boy who was abducted and murdered in 1989, listened intently during the two-hour hearing.

Judge Ann Carrott heard from the Wetterlings' attorneys who are trying to keep 168 pages in a 58,000-page casefile private.

Attorney Steven Wolter said the pages represent just a "tiny sliver" of the case and contain "intensely personal" information about the Wetterling family that has nothing to do with the investigation and does not mention Danny Heinrich, who confessed in 2016 to killing Jacob.

Mark Anfinson, the attorney representing the Minnesota Newspaper Association, of which Forum News Service is a member, and a coalition of media outlets and public interest groups, told Carrott that Minnesota's Data Practices Act requires all files to be public once an investigation is complete.

Anfinson said that no court has ruled that a right to privacy prohibits the disclosure of public records. He said that if privacy concerns are used to trump the Data Practices Act, it would effectively dismantle the act.

Although state and federal courts have recognized a right to privacy, the rulings are "all over the place," he said, with "no defining red line."

Carrott took both arguments under advisement. She's expected to issue a ruling in early April at a hearing that will likely take place in St. Cloud.

Not at odds with media

After the hearing, Patty Wetterling and her attorney, Doug Kelley, talked to the media.

Wetterling emphasized that the documents they want sealed are "very personal and private" and had nothing to do with the investigation.

Wetterling added that she is not at odds with the media, which she credited for helping in the search for Jacob. "They played a huge role in all of this and we're grateful for their help."

Wetterling said the case could have an unfortunate consequence: It may make families or community members less willing to work with law enforcement if they know the information they share could someday be made public.

She expressed hope, however, that the courts and Legislature will be able to come up with a way to "maximize transparency and minimize harm to victims."

"There will be good changes to come out of this," she said.

Legal precedents

During the hearing, Anfinson said the courts have ruled about the importance of making investigative data public so law enforcement agencies can he held accountable. If the process isn't transparent, agencies would be restricted in explaining their actions and the public could lose confidence in them, he said.

In weighing privacy rights versus public information, Anfinson urged Carrott to consider "the greater good for the greater number."

Wolter said there are already many exceptions in the Data Practices Act and all information doesn't "magically convert" into public data. He said decisions over public and private data should be decided by district judges, not by the legislative branch, which created the Data Practices Act.

Wolter said the act is very complex and has ballooned from six pages when it was enacted more than 40 years ago to 152 pages today. He said it's reached the point where there are more exceptions to the act than what is allowed to be public.

Wolter cited several court cases where privacy rights were recognized — a wife's diary, for example, was deemed to be protected information.

Wolter said state and federal courts have identified certain zones of privacy — family relationships, marital issues, child rearing and education — that are protected information.

Wolter told Carrott it was time to stop "picking the scabs off" of the Wetterling family's healing process by granting a summary judgment to keep the 168 pages private.

In response, Anfinson said that although the 168 pages may seem like a tiny sliver, the case has big implications. If the court decides that privacy rights take precedence over public data, the court must also build a bridge to constitutional privacy. "And once that's built, a lot of others will be going over it and it won't be controlled," he said.

The courts, he said, would be flooded with requests to withhold public information because of privacy concerns. "The rule of law would disappear into a thick bank of fog," he said.

Awaiting a ruling

When asked after the hearing about how it went, Anfinson said, "You just don't know how judges are going to rule. They won't tip their hand."

He added that he was grateful that Carrott presided over the case. "Judge Carrott was engaged, well informed and asked good questions."

FBI wants records back

Also, at Friday's hearing, Carrott considered a request from the U.S. Attorney's Office on behalf of the FBI. Attorney Ana Voss requested the Stearns County Sheriff's Office, the lead agency in the Wetterling case, to return all 12,000 pages of documents the FBI shared during the investigation.

Voss said the documents were loaned to the sheriff's office and the FBI wants them returned. If the public or media wants to see the documents, they would have to file a Freedom of Information — FOI — request.

Anfinson argued against the request, saying that Minnesota's Data Practices Act requires those those documents to be public. He said the process of getting access to the data through FOI is more difficult and less likely to succeed.

Anfinson said the agreement with the FBI lacked details about the exchange of information and doesn't specifically allow the FBI to take back all the records. "What's wrong with having Stearns County keep them?" he asked.

Anfinson also questioned how investigative information could be considered property.

Voss said that when federal law and state law are in conflict, federal law takes precedence.

Voss also said that Anfinson, representing media outlets, could not prove that he was an injured party in the case and because of that, the Data Practices Act wouldn't apply.

Stearns County Attorney Janelle Kendall told Carrott that the sheriff's office is not trying to hide anything, it just wants the court's guidance in whether it should follow state law in making the information public or comply with federal law and turn the records over to the FBI.

Al Edenloff is the news and opinion page editor for the Echo Press. He was born in Alexandria and lived most of his childhood in Parkers Prairie. He graduated with honors from Moorhead State University with a degree in mass communications, print journalism. He interned at the Echo Press in the summer of 1983 and was hired a year later as a sports reporter. He also worked as a news reporter/photographer. Al is a four-time winner of the Minnesota Newspaper Association's Herman Roe Award, which honors excellence in editorial writing.